This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2488

Illinois Farmers Insurance Group,

Appellant,

vs.

Norman Ziegler,

Respondent.

Filed July 1, 1997

Reversed

Willis, Judge

Washington County District Court

File No. C7962757

Daniel A. Beckman, Elliot L. Olsen, Gislason, Dosland, Hunter & Malecki, P.L.L.P., P.O. Box 5297, Minnetonka, MN 55343 (for Appellant)

Richard N. Indritz, Indritz Law Offices, Ltd., 701 Fourth Avenue South, Suite 1700, Minneapolis, MN 55415 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Illinois Farmers Insurance Company (Farmers) challenges the district court's grant of summary judgment to respondent Norman Ziegler whereby the court declared he is entitled to arbitration under the no-fault insurance act on his second petition for medical expenses. We reverse.

FACTS

In February 1991, Ziegler injured his shoulder in an automobile accident. Farmers denied Ziegler's insurance claim for medical expenses from 1993 and 1994 on the ground that the expenses did not arise out of the February 1991 accident. In January 1995, Ziegler filed an arbitration petition seeking benefits in the amount of $6,003.91. On August 7, 1995, the arbitrator awarded Ziegler each of the itemized medical expense benefits requested, including $377 for his bill from Dr. David Miller. Ziegler signed a satisfaction of award on November 28, 1995.

On March 23, 1996, Ziegler filed a second petition for arbitration based on a bill from Dr. Miller in the amount of $4,223.88 for services rendered in 1994. Farmers brought a declaratory judgment action seeking an order dismissing Ziegler's arbitration petition and declaring that Ziegler has waived and is collaterally estopped from asserting any claim for medical expenses arising out of the February 1991 automobile accident. Ziegler alleged that the second petition was necessary because after the August 1995 arbitration award, he learned of additional medical expenses arising out of the February 1991 accident that were outstanding at the time of the arbitration. Both parties moved for summary judgment. In October 1996, the district court declared that Ziegler was entitled to proceed with his second arbitration petition for medical expense benefits. Farmers appeals that determination.

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, this court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Farmers argues that Ziegler waived any claim for additional benefits for medical expenses incurred before the arbitration hearing by signing a satisfaction of award stating that he received $7,285.72

in full, final and complete satisfaction of the arbitrator's award of August 7, 1995, based on the arbitration of June 6, 1995, in the above-captioned matter for all no-fault benefits incurred as of the date of the arbitration.

"A waiver is a voluntary and intentional relinquishment or abandonment of a known right." Montgomery Ward & Co., Inc. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990). Because the facts here are not in dispute, we may determine the question of waiver as a matter of law. See id.

The district court concluded that Ziegler did not waive his right to arbitrate the $4,223.88 bill because the language of the satisfaction "refers specifically to the award of the arbitrator and the arbitration." In doing so, the court noted that ambiguities in contract language must be resolved against the drafter, which is Farmers. See Current Technology Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995) (concluding that court must give contract language its plain and ordinary meaning, but any ambiguity must be construed against drafter). "The determination of whether a contract is ambiguous is a question of law." Id. But the satisfaction expressly includes "all no-fault benefits incurred as of the date of the arbitration." Ziegler waived any claim for benefits for additional medical expenses incurred before the date of the arbitration hearing.

Farmers also contends the arbitrator's decision on Ziegler's first petition collaterally estops Ziegler from a second arbitration on additional medical expenses incurred before the first arbitration. See Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982) (concluding that collateral estoppel precludes a party from litigating issues that were previously litigated and essential to the former judgment). In addition, Farmers argues that Ziegler is not entitled to a hearing on his second arbitration petition because it would constitute an impermissible splitting of his cause of action. See Charboneau v. American Family Ins. Co., 481 N.W.2d 19, 21 (Minn. 1992) (holding that plaintiff could not split no-fault claim into separate petitions for medical expenses and wage loss because it depreciates the legislature's decision to set a jurisdictional limit). Because we reverse the district court's order on the ground of waiver, we need not decide the remaining issues raised by Farmers.

Reversed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.